Reviving the Military Commissions
One of the most important issues Congress is expected to address in the next two
weeks is how to try the terrorism suspects currently being held at Guantánamo
Bay. President Barack Obama promised to close the military detention center at
Guantánamo by January 2010, which would be an important step towards
restoring the reputation of the United States as a nation that adheres to the rule
of law. However, in May, he announced that he planned to revive the widely
discredited military commissions to try some of the Guantánamo detainees in
proceedings similar to the Bush administration’s military commissions, but with
some procedural changes designed to provide more due process. It is our view
that these changes would be insufficient, and that reviving the military
commissions in any form would be an enormous mistake.
Because of their tainted history, the commissions, if employed, would continue to
be stigmatized as substandard and unfair, would be plagued by controversy
and delay, and would make it impossible to put the terrible legacy of
Guantánamo behind us. The military commissions were created by the Bush
administration to quickly try terrorism suspects and achieve guilty verdicts without
regard to legal standards. Historically, military commissions have been used in
wartime when the normal mechanisms of criminal justice are not operational.
Since the normal mechanisms of criminal justice, US federal courts, are perfectly
capable of trying such crimes, there simply is no need to create military
commissions.
The military commissions under the Bush administration were so lacking in
fundamental due process guarantees that several prosecutors stepped down or
resigned, citing ethical issues with the system. In addition, in the eight years since
they were first announced, the military commissions have secured only three
convictions, only one of those a truly contested case, none of them high-level
terrorist suspects. US federal courts, by contrast, have secured well over 100
terrorism convictions in that same timeframe, including 9/11 conspirator Zacarias
Moussaoui and shoe bomber Richard Reid.
Federal courts have shown themselves capable of trying terrorism suspects in a
manner that is consistent with the US Constitution, the laws of war and American
values. The Guantánamo military commissions, even with some improvements,
can never meet that standard. Federal criminal courts have undergone many
years of practice and litigation so as to ensure fairness and to guard against
erroneous convictions. Departing from them would result in a second-class
system of justice that would lack legitimacy to the American public and around
the world.
Some have argued for the continuation of the military commissions as a way to
address the issue of “tainted evidence,” i.e., evidence derived through torture
and abuse. But the reason such evidence is excluded from US courts is not only
that torture is wrong and illegal, but because such evidence is inherently
unreliable. Federal prosecutors should be able to collect and prove their cases
with reliable evidence. It would be a grave mistake to create a whole new legal
system to accommodate past policies that permitted torture, which would only
lead us further down the road that strays from our most basic laws and values.
While we strongly believe that the commissions should be disbanded and
terrorism cases tried in federal courts, the military commissions, if continued to be
used, must have requisite procedural safeguards regarding constitutional due
process and must minimize legal confusion and delay. There are currently
proposed amendments to the Military Commissions Act in the US Senate. While
the amendments improve the existing system by making it harder to introduce
coerced evidence and hearsay, they still depart in fundamental ways from the
trial procedures used in US federal courts. In fact, the Department of Justice has
said that some of the procedures in the proposed legislation do not meet
constitutional requirements.
The Obama administration itself has also suggested changes to the commissions.
At the very minimum, we believe Congress should make the changes, but we
also believe it should address the other serious constitutional defects that we
have raised with lawmakers and the administration.
Below is a summary of the differences between the current legislation proposed
in the Senate and what the administration wants:
1. Coercion
The Senate bill would bar the admission of statements obtained by cruel,
inhuman, or degrading treatment but would not bar all coerced
statements.
The administration wants to adopt the “voluntariness” standard used by
federal courts that takes into account the challenges and realities of the
battlefield and armed conflict. This would not mean soldiers will be
required to give Miranda warnings to enemy forces captured on the
battlefield -- voluntary but non-Mirandized statements in military
commissions would be admissible. The administration believes that military
commissions that allow involuntary statements to be used as evidence
would eventually be struck down as unconstitutional.
2. Sunset provision
The Senate bill contains no sunset provision.
The administration believes the military commissions should be temporary.
3. Hearsay
The Senate bill restricts the use of hearsay, while preserving an important
residual exception for certain circumstances where production of direct
testimony from the witness is not available given the unique
circumstances of military and intelligence operations, or where
production of the witness would have an adverse impact on such
operations.
The administration agrees with that, but wants a different standard as to
when the exception should apply, based on whether the hearsay
evidence is more probative than other evidence. Adopting this standard
would bring the rule more closely in line with the evidentiary standards
used in federal court.
4. Subject matter jurisdiction
The Senate bill allows the military commissions to try non-law of war
violations, such as material support for terrorism or terrorist groups, and
conspiracy to commit terrorism.
The administration recognizes that there are serious questions as to
whether material support for terrorism or terrorist groups is a traditional
violation of the law of war and considers it very likely that appellate courts
will conclude that it is not, thus reversing convictions. We strongly believe
the military commissions should not include the crime of conspiracy or
material support. In his May 21 speech on national security, President
Obama affirmed that military commissions should be limited to law of war
violations. Both the Nuremberg Tribunal and the International Criminal
Tribunal for the former Yugoslavia considered and rejected prosecuting
the crime of conspiracy and we believe conspiracy convictions could be
overturned on appeal for this reason.
In addition, we are concerned by several other military commissions issues that
the administration has not addressed
1. Children
We believe that child offenders should be excluded from trial before the
military commissions. This is not a hypothetical concern. The government has
initiated proceedings before military commissions against two defendants
who were children at the time of the alleged offenses. International law
requires that trials of juveniles be conducted in a manner that takes account
of their age and the desirability of promoting their rehabilitation. This means
that trials of juveniles should be conducted differently than those of adults,
which is normally accomplished by juvenile courts.
2. Defense resources
Defense teams at the military commissions have operated under onerous
resource constraints that violate the right to effective assistance of counsel
guaranteed by the Sixth and Eighth Amendments, and would not be
tolerated in any federal courtroom in America. Congress should ensure that
defense counsel have access to the resources they need to defend their
clients, including investigatory, legal, and translation support. In the United
States, everyone accused of a crime, no matter how heinous the crime may
be, is allowed the ability to mount an adequate defense.
3. Discrimination
By singling out foreign nationals to be subject to the jurisdiction of military
commissions, the draft legislation arbitrarily discriminates on the basis of
citizenship, violating US obligations under international human rights law and
contravening the Equal Protection Clause of Constitution. In 2004, the UK
House of Lords struck down a comparable distinction, ruling that legislation
that subjected only alien terrorist suspects to indefinite detention arbitrarily
discriminated on the basis of citizenship.
Alliance for Justice
American Civil Liberties Union
Center for Constitutional Rights
Human Rights First
Human Rights Watch
National Association of Criminal Defense Lawyers
National Institute of Military Justice